This topic is one that hits close to home for a number of foreigners living in South Africa. The familiar story is that parents to their new born babies soon discover that their new bundle of joy is an immigration nightmare and often the discovery occurs at the most inopportune time, when leaving the country for the first time or trying to return home after a visit to the grandparents. Having encountered many cases like this I feel it is important to share some important information to help.
Citizenship Status of children born in South Africa.
Children born in South Africa retain the citizenship of the parents. This means that they are not South African Citizens and must apply for the appropriate visa. The children however retain the right to apply for South African citizenship upon reaching the age of 18 provided that they have been ordinarily resident in South Africa for the 18 years and that they make the election to become SA citizens.
Children Born to SA Temporary resident parents.
These children must apply for an accompanying dependent visa to reside with their parents in South Africa. The application must be lodged within 6 months of the child’s birth in South Africa. It is not advisable for the child to leave the republic before securing the visa because upon the child’s return he/ she will be entered as a tourist and changing the visa from a 90-day tourist visa to an accompanying dependent may be an issue. Ordinarily the application would be a change of conditions of the visitor’s visa which is permissible under section 10(6)(b) of the Immigration Act however, this section has been subject to much debate and of late VFS has indicated that they have an instruction from DHA not to accept such applications. It therefore means that a family in this situation has two options, either go back to the country of origin and apply for the visa or apply to the Minister for a waiver of this section on good cause.
Children Born to SA Permanent Resident Parents.
Previously children born to a permanent resident parent or parents were assigned citizenship at birth. This is no longer the case. All children born under these circumstances are considered non-citizens and must apply for a temporary residence visa. The applicable visa in this case is the Relatives visa. As with the above category, the application must be lodged within 6 months of birth otherwise the child will be considered as having overstayed.
Parents are advised not to travel with their child before applying for the visa and securing the visa as applying upon returning to the republic will be impossible. Unlike the case with children applying under section 11(1)(b)(iv), these children will be applying for a change of status form tourist to a relative’s visa, a move prohibited by law. I have encountered a number of families in these circumstances and while the waiver remains an option it is never certain whether the application will be granted. The situation can be very frustrating and is best avoided.
So in conclusion lets recap, children born in South Africa where neither parent is a citizen are not automatically assigned citizenship. They are foreigners and must apply for the appropriate visa. The application for a visa must be lodged within 6 months of birth at the nearest VFS offices. It is not advisable to travel out of the country with your child before settling the resident visa issue as doing so will potentially open a can of worms.
For further information on this issue and other immigration related matters please feel free to contact our offices
Munyaradzi Nkomo
Lead immigration specialist at Strategies Migration Services SA
Email munya@immigrationspecialists.co.za
Cell: +2774 337 0269
tel : +2711 064 4875
www.immigrationspecialists.co.za